Bombay High Court
Aamir Abbas Karnekar vs The State Of Maharashtra And Anr on 10 January, 2022
Bench: Prakash Deu Naik
34-ia-1103.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1103 OF 2020
IN
CRIMINAL APPEAL NO.272 OF 2021
Aamir Abbas Karnekar ...Applicants
Versus
The State Of Maharashtra And Anr. ...Respondents
Shri. Keshav S. Chavan, Advocate for the Applicants.
Shri. S.H. Yadav, APP for the Respondent - State.
Ms. Megha Bajoria, Advocate for Respondent No.2.
CORAM : PRAKASH D. NAIK, J.
DATE : 10th JANUARY, 2022.
PER COURT:
1. This is an application for suspension of sentence and
grant of bail. During the pendency of Criminal Appeal No.272 of
2021 preferred by the applicant challenging the judgment and
order dated 9th December 2019 passed by the learned Special Judge
under the Protection Of Children from Sexual Offences Act, 2012
(for short "POCSO") in POCSO Case No.227 of 2014 wherein the
applicant has been convicted for the offence punishable under
section 376(2) of IPC and sentenced to suffer RI for 10 years. He is
also convicted for the offence under section 366 of IPC and
sentenced to suffer RI for two years.
Digitally signed
by PALLAVI
MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2022.01.11
17:21:11
+0530
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2. The case of the prosecution is that the victim is minor.
The accused had developed relationship with the victim. There was
physical relationship between them. The victim had conceived.
3. The accused was prosecuted for the offences under
sections 376(2), 366 and 363 of IPC and Section 6 of POCSO Act.
While convicting the applicant - accused it was observed that the
offences under the Penal Code as well as the POCSO Act are proved
against the applicant. However, no separate sentence was imposed
for the offence under section 6 of POCSO Act since sentence of 10
year's imprisonment was awarded for the conviction under section
376(2) of IPC.
4. The learned counsel for the applicant submitted that
the applicant - accused was on bail during the trial. He has not
misused the facility of bail. On the date of conviction he has been
taken into custody. He has undergone custody of about two years
and 9 months. The relationship was of consensual nature. Although
it is the case of the prosecution that the victim was minor the age
of the victim has not been proved as below 18 years by cogent
evidence. No documents were produced to establish that the victim
was minor at the time of incident. The prosecution has relied upon
the Transfer Certificate. However, there is no corroborative
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evidence to show that the information on the basis of which the
Transfer Certificate was issued determine the age of the victim. The
applicant has good case on merits. The judgment of the trial Court
suffers from discrepancies.
5. The learned APP submits that having proved that the
victim was minor aged about 16 years, the consent is immaterial.
The prosecution has adduced sufficient evidence to establish the
charges. The accused has committed the offences under the Indian
Penal Code as well as the POCSO Act. The accused was a married
person. He has suppressed the said fact.
6. The learned Advocate representing the complainant
submitted that the age of the victim has been proved. She was
minor at the time of incident. The consent of minor is immaterial.
The accused had developed the relationship with the victim by
suppressing the fact that he was already married person. Assuming
that there was love relationship between the accused and the
victim, the victim was not aware that the accused is married
person. There was promise of marriage. The offence is of serious
nature. Hence, bail may not be granted pending the hearing of this
Appeal.
7. As noted hereinabove, the appellant was on bail
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during the trial. It is not reported that he has misused the liberty
granted to him. The Appeal preferred by the applicant has been
admitted by this Court and it is pending for final disposal. The
victim in her deposition has admitted that she had developed
acquaintance with the accused. Both of them used to chat with
each other. The accused had promised her that he would marry her.
There was a physical relationship between them. It was brought to
the notice that her date of birth was 5th March 1996 as mentioned
in the age determination report. It is not correct birth date. Her
date of birth is 5th March 1998. The pregnancy was terminated by
consent. To establish the age of the victim the prosecution has
examined PW12, he has produced the Transfer Certificate of victim.
He produced the admission form. According to him, the date of
birth of the victim was 5th March 1998. However, on perusal of the
evidence, it can be seen that the witness has not seen the original
Birth Certificate of the victim before recording her date of birth.
The fact that the accused was a married person is allegedly
disclosed by the accused at the Police Station and the said fact is
deposed by the said witnesses. The Appeal is pending for hearing.
The disputed issue of date of birth will have to be gone into at the
stage of final hearing. Prima facie, it can be seen that there is no
cogent evidence to determine the age of the victim.
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8. Taking into consideration the aforesaid circumstances,
the sentence of imprisonment can be suspended. Hence, the
following order:-
ORDER
(i) Interim Application No.1103 of 2020 is allowed;
(ii) Pending the hearing and final disposal of Criminal
Appeal No.272 of 2020, the sentence of imprisonment
awarded against the accused in POCSO Case No.227 of
2014 by the Court of Sessions Judge and the
Designated Judge for Greater Bombay, POCSO vide
judgment and order dated 9th December 2019 is
suspended and the applicant is directed to be released
on bail on P.R. Bond in the sum of Rs.25,000/- with
one or more solvent sureties in the like amount;
(iii) The applicant is permitted to furnish cash bail in the
sum of Rs.25,000/- for a period of eight weeks in lieu
of surety;
(iv) The applicant shall report the trial Court once in six
months on the first Monday of that month between
11.00 am to 1.00 pm.;
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(v) In the event, there are two consecutive defaults in
appearing to the trial Court by applicant, the said fact
be brought to the notice of this Court;
(vi) Interim Application No.1103 of 2020 stands disposed
off.
(PRAKASH D. NAIK, J.)
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